93 Decision Citation: BVA 93-10834
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-55 843 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to reopen
a claim for service connection for arthritis of the spine,
shoulders, left knee, and the elbows.
2. Entitlement to service connection for hypertension.
3. Entitlement to an increased evaluation for a right knee
disorder, currently evaluated as 30 percent disabling.
4. Entitlement to a total rating for compensation purposes based
on individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counse
INTRODUCTION
The veteran had active honorable service including a period from
August 1946 to March 1948. He had prior service in the United
States merchant marine. A Board of Veterans' Appeals decision of
October 1989 denied service connection for arthritis of the left
knee, lumbosacral spine, and left shoulder. The veteran has
recently submitted additional evidence, asking that his claim for
service connection for these disorders be reopened. The rating
board has determined that this evidence was not new and material,
and the current appeal ensued.
This matter came before the Board on appeal from a November 1990
rating decision from the Pittsburgh, Pennsylvania, Regional Office
(RO). The notice of disagreement was received on January 22,
1991. The statement of the case was issued on February 13, 1991.
A substantive appeal was received on April 3, 1991. In October
1991, the veteran appeared and gave testimony at a hearing before
a hearing officer at the RO. After his claim was again denied, a
supplemental statement of the case was issued on December 11,
1991. The case arrived at the Board of Veterans' Appeals on
February 7, 1992, and was docketed for appeal on February 13,
1992. The veteran has been represented during his appeal by The
American Legion, to which the file was referred. That
organization submitted written arguments to the Board on April 13,
1992. The case is before the Board for appellate consideration at
this time.
REMAND
The veteran has contended that he developed arthritis of the back,
left knee, and "upper torso" as a result of his service-connected
right knee disorder. These issues have been certified for appeal.
However, he has also asserted that he has hypertension, and
arthritis in the right shoulder and both elbows as a result of his
service-connected right knee disorder and that an increased
evaluation is warranted for this service-connected disability as
is a total rating for compensation purposes based on individual
unemployability. These issues are closely associated with those
currently before the Board but they have not been developed and
certified for appeal. In addition, the veteran's representative
has noted that he received considerable recent private treatment
for the disorders currently at issue and requests that these
private clinical records be obtained prior to appellate
consideration of this case. In addition, the veteran has reported
receiving considerable treatment in recent years from the
Department of Veterans Affairs (VA), but no clinical records
reflecting this treatment subsequent to April 1987 are in the
claims folder. Finally, the Board notes that the veteran has not
received a VA orthopedic examination since October 1986.
In view of the above, and given the duty to assist the veteran in
the development of his claim under the provisions of 38 U.S.C.A.
5107(a) (West 1991), this case is REMANDED to the RO for the
following action:
1. Copies of all clinical records
documenting the veteran's treatment at the
VA Medical Centers, Highland Drive and
University Drive in Pittsburgh,
Pennsylvania, and the VA Outpatient Clinics
in the Fulton Building and at 1000 Liberty
Avenue in Pittsburgh, Pennsylvania,
subsequent to April 1987 should be obtained
and associated with the claims folder.
2. The RO should contact David Richard,
M.D., of the North Hills Health Center at
500 Blazier Drive in Wexford, Pennsylvania
15090; and Francis J. Schafer, M.D., of 701
Broad Street in Sewickley, Pennsylvania
15143 and ask them to provide copies of all
clinical records documenting their treatment
for the disorders currently at issue. All
records obtained should be associated with
the claims folder.
3. The veteran should be asked to provide
the complete address of Charles L. Pucevich,
M.D., a rheumatologist, and the complete
name and address of his family physician
who, reportedly, has provided him with long-
term treatment for his musculoskeletal
complaints. When the veteran responds,
these physicians should be contacted and
asked to provide copies of all clinical
records documenting their treatment. All
records obtained should be associated with
the claims folder.
4. Thereafter, the veteran should be given
a special examination by an orthopedist and
a rheumatologist to determine the current
degree of severity of his service-connected
right knee
disorder and the severity and etiology of
his claimed osteoarthritis of multiple
joints. All necessary special studies, to
include X-rays of the veteran's knees,
shoulders, spine, and elbows should be
obtained and all pertinent clinical findings
reported in detail. The claims folder must
be made available to the examining
physicians prior to the evaluation so that
the pertinent clinical records may be
studied in detail. At the conclusion of his
evaluation, each examiner should express his
opinion regarding the relationship, if any,
between the veteran's service-connected knee
disorder and the arthritis in those joints
for which service connection is currently
claimed.
When the above development has been completed, the RO should again
adjudicate the issues of service connection for arthritis of the
spine, left knee, and both shoulders as well as arthritis of the
elbows. The RO should also adjudicate the issues of service
connection for hypertension as well as the issues of an increased
evaluation for the veteran's right knee disorder and entitlement
to a total rating for compensation purposes based on individual
unemployability after considering all applicable laws and
regulations and the total history of the veteran's service-
connected disability(ies) as mandated by Schafrath v. Derwinski, 1
Vet.App. 589 (1991). In addition, the unemployability standards
discussed in Brown v. Derwinski, 2 Vet.App. 444 (1992) should be
discussed.
If these benefits remain denied, the veteran and his
representative should be provided with a supplemental statement of
the case containing all pertinent laws and regulations and
afforded a reasonable opportunity to respond. Thereafter, the
case should be returned to this Board for its further
consideration, if in order. No action is required of the veteran
until he is so informed. The purpose of this REMAND is to obtain
additional, clarifying, clinical evidence and to ensure that he
receives due process of law. By this REMAND the Board intimates
no opinion as to the outcome in this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA CHARLES E. EDWARDS, M.D.
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of the
Board, to proceed with the transaction of business without
awaiting assignment of an additional member to the Section when
the Section is composed of fewer than three Members due to absence
of a Member, vacancy on the Board or inability of the Member
assigned to the Section to serve on the panel. The Chairman has
directed that the Section proceed with the transaction of
business, including the issuance of decisions, without awaiting
the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board
of Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 57 Fed. Reg. 4126 (1992) (to be codified
as 38 C.F.R. § 20.1100(b)).